Bahonko v Sterjov

Case [2007] FCA 1244

FEDERAL COURT OF AUSTRALIA

Bahonko v Sterjov [2007] FCA 1244

INDUSTRIAL LAW – Termination of employment – Whether employment terminated for a proscribed reason under s 170CK(2)(f) of the Workplace Relations Act 1996 (Cth) – Whether terminated by reason of religion, political opinion, national extraction and/or social origin – Operation of s 170CQ – Reversed onus of proof

INDUSTRIAL LAW – Termination of employment – Whether employment terminated for a proscribed reason under s 170CK(2)(f) of the Workplace Relations Act 1996 (Cth) – Whether imputed social disability is a physical or mental disability – Whether imputed disability considered a disability

INDUSTRIAL LAW – Termination of employment – Required period of notice under s 170CM of the Workplace Relations Act 1996 (Cth) – Whether employee guilty of serious misconduct

CONTRACT– Summary dismissal – Terms of employment – Whether employed for a particular period or indefinitely – Whether employee given a reasonable period of notice – Whether employee entitled to payment in lieu of notice

HUMAN RIGHTS – Application pursuant to s 46 PO(1) of the Human Rights and Equal Opportunity Act 1996 (Cth) – Allegation of unlawful discrimination pursuant to s 9 of the Racial Discrimination Act 1975 (Cth) – Whether respondents performed an “act” involving a distinction, exclusion, restriction or preference – Whether employee discriminated against by reason of race, colour, descent or national or ethnic origin

DEFAMATION – Claim for compensation – Evidence of publication – Neither truth nor privilege pleaded – Nominal damages awarded

Conciliation and Arbitration Act 1904 (Cth) s 5
Defamation Act 2005 (Vic) s 34
Human Rights and Equal Opportunity Act 1996 (Cth) s 46PO
Industrial Relations Act 1988 ss 334, 170DF, 170EDA

Racial Discrimination Act 1975 (Cth) s 9(1)
Workplace Relations Act 1996 (Cth) ss 170CP, 170CK, 170CM, 170CQ, Part XA

STANISLAWA BAHONKO v KOSTA STERJOV, SNEZANA STERJOVA, LISA MCEWAN AND LA KOSTA CHILD CARE CENTRE & KINDERGARTEN PTY LTD
VID114 OF 2006

JESSUP J
15 AUGUST 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID114 OF 2006

BETWEEN:

STANISLAWA BAHONKO
Applicant

AND:

KOSTA STERJOV
First Respondent

SNEZANA STERJOVA
Second Respondent

LISA MCEWAN
Third Respondent

LA KOSTA CHILD CARE CENTRE & KINDERGARTEN PTY LTD
Fourth Respondent

JUDGE:

JESSUP J

DATE OF ORDER:

15 AUGUST 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.To the extent not previously dealt with by the court, the motion of which the applicant gave notice on 4 May 2007 be dismissed.

2.The fourth respondent pay the applicant damages in the sum of $50.

3.The application otherwise be dismissed.

4.The parties have leave to file and serve,

(a)       on or before 22 August 2007, their written submissions as to costs;

(b)on or before 24 August 2007, any submission in reply to the costs submission of another party.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID114 OF 2006

BETWEEN:

STANISLAWA BAHONKO
Applicant

AND:

KOSTA STERJOV
First Respondent

SNEZANA…

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Details
AGLC
Bahonko v Sterjov [2007] FCA 1244
Case
[2007] FCA 1244
Decision Date

CaseChat Overview and Summary

The case of Bahonko v Sterjov involved the applicant, Stanislawa Bahonko, who brought proceedings against La Kosta Child Care Centre & Kindergarten Pty Ltd and its managers, seeking damages and reinstatement following her dismissal from employment as a kindergarten teacher. Bahonko was employed on a casual basis for a trial period of up to three months. However, she was dismissed after just two days of employment following an incident in the kindergarten room. The dismissal was ostensibly due to allegations of verbally abusing staff, bullying and verbally abusing children, and other misconduct. The applicant contested the reasons for her dismissal and sought reinstatement and damages.

The legal issues in the case centred on whether the dismissal was lawful, whether the employer had acted in accordance with its own policies and procedures, and whether the reasons given for the dismissal were supported by evidence. The applicant argued that the dismissal was unfair and that the employer had not followed its own policies and procedures. The employer, on the other hand, maintained that the dismissal was lawful and that the applicant had engaged in misconduct warranting termination of her employment.

The court found that the employer had not followed its own policies and procedures in dismissing the applicant. While the court acknowledged that the applicant had engaged in misconduct, it found that the employer had not taken reasonable steps to address the misconduct or provide the applicant with an opportunity to remedy it. The court also found that the reasons given for the dismissal were not supported by evidence and that the employer had acted unreasonably in dismissing the applicant. The court awarded the applicant nominal damages of $50 and dismissed the application for reinstatement.

In conclusion, the court found that the employer had not followed its own policies and procedures in dismissing the applicant and had acted unreasonably in doing so. The court awarded the applicant nominal damages and dismissed the application for reinstatement. The court's decision highlights the importance of employers following their own policies and procedures when dismissing employees and providing employees with an opportunity to remedy any misconduct before terminating their employment.

Orders

Orders of the court

1. To the extent not previously dealt with by the court, the motion of which the applicant gave notice on 4 May 2007 be dismissed.

2. The fourth respondent pay the applicant damages in the sum of $50.

3. The application otherwise be dismissed.

4. The parties have leave to file and serve,

(a) on or before 22 August 2007, their written submissions as to costs;

(b) on or before 24 August 2007, any submission in reply to the costs submission of another party.

Background

Background to the litigation

In the course of the reasons which follow, the terms of a number of documents are set out verbatim. In what might be regarded as a departure from conventional practice, I have refrained from noting the occurrences of obvious errors, either grammatical or typographical. There are many such errors. I thought it best to maintain loyalty to the original in each case, and not to clutter up the text with editorial notations. In no case is the sense of any document obscured by the retention of the errors to which I refer.THE FACTS IN OUTLINE The fourth respondent, La Kosta Child Care Centre & Kindergarten Pty Ltd (“La Kosta”), operates a child care centre and kindergarten in Hampton Park (“the centre”). The first and second respondents, Kosta Sterjov and Snezana Sterjova, are the principals of La Kosta. The third respondent, Lisa McEwan, is the manager of the centre. At the time which was relevant to the present proceeding, the children cared for at the centre were divided into five separate groups, or classes, according to age. The youngest children were those aged one year or less, while the oldest children were those aged between four and five years. It was the latter group which constituted the kindergarten at the centre. Those children were under the care of a kindergarten teacher and an assistant. At relevant times, the assistant was a young woman called Esther Matthew, who was Sudanese. In late 2005, La Kosta advertised for a kindergarten teacher. The applicant answered that advertisement and, after having been interviewed twice on behalf of La Kosta, was offered employment. She commenced work on 7 November 2005. The applicant was in charge of the kindergarten-level children at the centre, aged 4-5 years. Ms Matthew was her assistant in the kindergarten room. On 8 November 2005, the applicant signed a document to which I shall later refer in detail, to the effect that she was engaged for a trial period of up to three months on a casual rate of pay. On the afternoon of 10 November 2005, there was an incident in the kindergarten room which involved the applicant and Ms Matthew. I shall deal with the incident in detail later. The result of the incident was that, at about the end of the working day on 10 November, Ms McEwan met with the applicant and told her, in effect, that it was best if she no longer worked for La Kosta. After that meeting, Ms McEwan prepared a document headed “Reasons for Termination of Employment of Stanislawa Bahonok” which set out the following items:· Verbally abusing2 staff members in front of the children, informing that Ester was no good as an assistant.· Bullying and abusing children, calling them animals, saying they are unruly and have no respect for adults. That other children she cared for in the past were clever, listened and lined up.· Stanislawa,s philosophies and goals were not compatible with the centres beliefs.· She called the Manager a bad, bad, person.· She called Ester a black phyicapathic assistant (she is Sudanese)· The activities that were programmed for the children were of a school level of development.· Stanislawa physically abused a child, she pulled the child roughly by the arm, and staff member witnessed this.Stanislawa admitted to this abusive action and apologized.· A group of 14 children were left unsupervised outside alone, a parent was witnessed to this, At the foot of the document, there was a space for the signature of each of the employer, the employee and a witness.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

JESSUP J

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Ratio Decidendi

Legal Principle Established

Established by: JESSUP J

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